NATO action unwisely undercuts U.N.

No matter what the outcome of the NATO bombing campaign, the
fundamental architecture of international law, centered on the United
Nations during the 50 years since World War II, has suffered a severe
blow from which it may never recover.

The delicate, and sometimes contradictory, balance between
“national sovereignty,” upon which the U.N. Charter is
premised, and “the human rights of individuals against
oppressive governments,” articulated in the Universal
Declaration of Human Rights, has been altered forever. The result is
likely to be more international chaos, war crimes and acts of
genocide, and the American people will be asked to pay the price for
generations to come.

Under the United Nations Charter and subsequent U.N. resolutions, the
use of force is banned unless specifically authorized by the Security
Council, after the Security Council has determined that peaceful
methods have failed, or when “self-defense” is required in
the case of an armed attack. It is a clear violation of fundamental
United Nations principles for one sovereign member state to attack
another, even for “humanitarian purposes.”

While this may seem to be an inhumane technicality in the face of
apparent acts of brutality, like those alleged in Kosovo, there are
important historical reasons for this seemingly irrational respect for
national sovereignty. One of the important lessons of WWII was that
militarily powerful states can use “humanitarian
intervention” to justify military action that expands
international conflicts and increases the suffering of innocent
civilians.

Germany announced that it was “protecting the rights of
oppressed Germans” when it annexed part of
Czechoslovakia. Mussolini invaded Ethiopia to “liberate and
civilize” the Ethiopian people. The Japanese invaded Manchuria
to “defend the Manchurians from Chinese bandits.” When the
United Nations was founded in 1945, it was well understood that claims
of humanitarian intervention were not always humane.

Respect for national sovereignty was the mechanism that the
U.N. Charter adopted to prevent powerful nations from using
“humanitarian intervention” as a guise for military
adventurism and imperialism. It is the cornerstone of all
international legal systems.

This respect for national sovereignty, however, does not mean that the
United Nations and international law holds national sovereignty above
all else, and ignores the plight of those oppressed by their own
governments. The Nazi War Crimes Tribunals made clear that brutal
leaders cannot use “national sovereignty” as a defense for
genocide and other crimes against humanity.

In 1948 the United Nations Universal Declaration of Human Rights set
out specific rights that all governments were obliged to respect. The
United Nations also passed other resolutions outlawing politically
motivated rape and other crimes against humanity.

The recently established War Crimes Tribunals, set up in the aftermath
of acts of genocide in Rwanda and Bosnia, was the first step to
creating international juridical bodies capable of punishing war
criminals and acts of genocide. Under this emerging structure of
international human rights law, leaders like Augusto Pinochet,
Slobodan Milosevic or Saddam Hussein can be held liable for war crimes
or acts of genocide, if these U.N. bodies and international legal
principles are fully supported by the member states.

Unfortunately, as the United States has risen to hyperpower status, it
has repeatedly undermined the effectiveness and authority of these
international bodies. The United States has economically crippled the
United Nations by refusing to pay more than $1 billion in back
dues. It has refused to recognize the jurisdiction of the World Court
when the decisions of that body, such as the decision declaring
nuclear weapons illegal, are contrary to current U.S. policy. The
United States also opposed the creation of the War Crimes Tribunal and
has refused to cooperate with its investigations, or with seizing war
criminals under indictment. Now, the NATO bombing has further degraded
this emerging international legal structure.

The world's only remaining superpower has established the
principle that, once again, claims of humanitarian intervention can be
used to justify acts of war against a sovereign nation without
U.N. authorization. How this principle might be used to justify
U.S. military intervention in the future is anyone's guess. Should
the United States intervene to protect the Kurds from Turkish
depredations? Will it defend the Chechens who are surrounded and
oppressed by hostile Russians? What about the Colombian people being
killed in their thousands by government-supported paramilitaries?

Of course, the United States cannot intervene every time a brutal
regime oppresses its own people, because such oppression simply occurs
too frequently. It is much more likely that America will only
intervene for “humanitarian reasons” when it serves
short-term U.S. policy interests. Even if the United States could
apply the policy of humanitarian intervention evenly, consistently and
fairly, the result will not be a more stable and humane world order.

At the close of the 20th century, the most powerful nation in the
history of the world, and its allies, are establishing the principle
that nations with sufficient military power and claims of
“humanitarian purpose” can act independently of the United
Nations structure, as long as an even larger military power does not
intervene to stop them. This lesson will not be lost on future local
and regional Hitlers, who have the military means to
“liberate” their “oppressed neighbors.”

When other countries begin their own “humanitarian
interventions” in the next century, the people of the United
States may well come to regret the absence of a strong United
Nations. Without the U.N. structure to rely on, the only alternative
for addressing future war crimes and genocide, as well as the
“humanitarian intervention” of other nations, will be
ever-escalating and virtually limitless demands on U.S. military
power, including the use of ground troops. Future generations of
Americans will pay the long-term costs of this last great military
adventure of the 20th century, no matter what the outcome.

Peter Erlinder, a professor at William Mitchell College of Law
in St. Paul, is past president of the National Lawyers Guild.